In the

United States Court of Appeals

for the Seventh Circuit

____________________ 

No. 20-2387 

SCHUYLER FILE, 

Plaintiff-Appellant, 

v.

LARRY MARTIN, Executive Director 

of the State Bar of Wisconsin, et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court

for the Eastern District of Wisconsin. 

No. 19-C-1063 — Lynn Adelman, Judge. 

____________________ 

ARGUED JANUARY 15, 2021 — DECIDED APRIL 29, 2022 

____________________ 

Before SYKES, Chief Judge, and WOOD and HAMILTON,

Circuit Judges. 

SYKES, Chief Judge. Under rules adopted and enforced by 

the Wisconsin Supreme Court, all lawyers licensed to practice in the state must be members of and pay dues to the 

State Bar of Wisconsin, a professional association created by 

the court. Attorney Schuyler File contends that requiring 

him to join and subsidize the State Bar violates his free-
2 No. 20-2387 

speech and associational rights under the First Amendment. 

Recognizing that Supreme Court precedent forecloses this 

claim, see Keller v. State Bar of Cal., 496 U.S. 1 (1990), File

maintains that the Court’s more recent cases—particularly 

Janus v. American Federation of State, County, & Municipal 

Employees, Council 31, 138 S. Ct. 2448 (2018)—implicitly 

overruled Keller. 

The district court rejected this argument, and properly 

so. Keller may be difficult to square with the Supreme 

Court’s more recent First Amendment caselaw, but on 

multiple occasions and in no uncertain terms, the Court has 

instructed lower courts to resist invitations to find its decisions overruled by implication. Keller is binding. We affirm.

I. Background

Wisconsin lawyers must join and pay annual dues to the 

State Bar of Wisconsin, and active membership in the association is “a condition precedent to the right to practice law” 

in the state. WIS. S. CT. R. 10.01(1); see also id. R. 10.03(5) 

(establishing the dues requirement); id. R. 23.02(1) (providing that no person may practice law in the state without a 

current license issued by the Wisconsin Supreme Court and 

active membership in the State Bar). This regulatory regime, 

often called an “integrated, mandatory[,] or unified bar,” 

Kingstad v. State Bar of Wis., 622 F.3d 708, 713 n.3 (7th Cir. 

2010) (quotation marks omitted), authorizes the State Bar to 

use membership dues to fulfill the purposes for which it was 

created. These include “aid[ing] the courts in ... the administration of justice”; “conduct[ing] a program of continuing 

legal education”; and “maintain[ing] ... high ideals of integrity, learning, competence[,] ... public service[,] and high 

standards of conduct” in the bar of the state. WIS. S. CT.
No. 20-2387 3 

R. 10.02(2). To those ends, the State Bar hosts seminars, 

sponsors amicus briefs, publishes a magazine, proposes 

legal-ethics rules, and lobbies the government. Some of these 

activities venture into political and socially sensitive subjects.

Failing to pay bar dues can result in serious consequences. Attorneys who fail to pay dues by the annual due date 

and remain delinquent after notice and the expiration of a 

specified grace period are automatically suspended. WIS.

STATE BAR BY-LAWS art. I, § 3(a). (The administrative suspension is lifted if the delinquent lawyer pays the late dues plus 

a small penalty, but this remedy is not available if the dues 

have been in arrears for three years. Id. art. I, § 3(c).) 

Suspended lawyers cannot practice law. Id.; see also WIS.

S. CT. R. 23.02(1). The state supreme court and every judge in 

the state receives a certified list of all lawyers suspended for 

nonpayment of dues. WIS. STATE BAR BY-LAWS art. I, § 3(a). 

Practicing law while suspended violates state legal-ethics 

rules. WIS. S. CT. R. 20:8.4(f). 

The Office of Lawyer Regulation—the court agency that 

investigates and prosecutes ethics violations—may initiate 

proceedings to impose additional sanctions, including full 

license suspension. See, e.g., In re FitzGerald, 735 N.W.2d 913, 

916 (Wis. 2007). But the Wisconsin Supreme Court, which 

has plenary constitutional power to regulate the legal profession in the state, is the ultimate enforcement authority for

the lawyer regulatory system—including the licensing rules, 

bar-membership requirement, and the ethics code—and

imposes discipline for violations. WIS. S. CT. R. 21.09; see also

id. R. 21 pmbl. (“The lawyer regulation system is established 

to carry out the supreme court’s constitutional responsibility 
4 No. 20-2387 

to supervise the practice of law ... .”). The Office of Lawyer 

Regulation acts pursuant to the court’s authority and is the 

court’s agent for investigating and prosecuting violations. 

See id. R. 21.13. 

Schuyler File is an active, dues-paying member of the 

State Bar. But he does not want to be. He filed suit challenging the constitutionality of the mandatory bar, naming the

association’s executive director and its president and the 

justices of the state supreme court as defendants. He sought

a declaration that the mandatory bar is facially incompatible 

with the First Amendment and an injunction prohibiting the 

defendants from enforcing the membership and dues requirements. 

The justices and State Bar officials filed separate motions

to dismiss for lack of subject-matter jurisdiction and failure 

to state a claim. See FED. R. CIV. P. 12(b)(1), (b)(6). Both sets of 

defendants argued that the Supreme Court’s decision in

Keller precludes File’s claim on the merits. The justices also 

challenged File’s standing to sue, arguing that his injury is 

hypothetical at best and not traceable to them. Additionally, 

the justices raised a defense of immunity. 

The judge rejected the jurisdictional argument, holding 

that the injury File would suffer if he stopped paying bar 

dues—automatic suspension of his right to practice law—is 

certain enough to support his standing to bring this preenforcement suit for prospective relief. File v. Kastner, 469 F. 

Supp. 3d 883, 886–87 (E.D. Wis. 2020). The judge also rejected the justices’ immunity claim, relying on Pulliam v. Allen, 

466 U.S. 522, 541–42 (1984). File, 469 F. Supp. 3d at 888.

Moving to the merits, the judge dismissed the case, ruling 
No. 20-2387 5 

that File’s claim “is foreclosed by Keller, which only the 

Supreme Court may overrule.” Id. at 891.

II. Discussion

We review the judge’s dismissal order de novo. Price v. 

City of Chicago, 915 F.3d 1107, 1110 (7th Cir. 2019). Our first 

order of business is the question of standing. The justices

(but not the State Bar officials) argue that File alleged nothing more than a hypothetical injury and thus lacks standing 

to sue. 

Article III limits the federal judicial power to “Cases” and 

“Controversies,” which in turn requires the party invoking 

the jurisdiction of the federal court to establish his standing 

to sue. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). To do 

so, the plaintiff “must demonstrate (1) that he or she suffered 

an injury in fact that is concrete, particularized, and actual or 

imminent, (2) that the injury was caused by the defendant, 

and (3) that the injury would likely be redressed by the 

requested judicial relief.” Thole v. U.S. Bank N.A., 140 S. Ct. 

1615, 1618 (2020).

As noted, this is a pre-enforcement suit: File seeks prospective relief based on the threat of injury—suspension of 

his right to practice law—if he were to refuse to pay bar 

dues. “It is well-established that pre-enforcement challenges 

are within Article III.” Ezell v. City of Chicago, 651 F.3d 684, 

695 (7th Cir. 2011) (quotation marks and alterations omitted).

For this type of claim, the Article III minimums are satisfied

when “there exists a credible threat of prosecution.” Susan B. 

Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quotation 

marks omitted). A person need not violate the law and risk 

prosecution to bring a pre-enforcement challenge. Ezell,
6 No. 20-2387 

651 F.3d at 695; see also Schirmer v. Nagode, 621 F.3d 581, 586 

(7th Cir. 2010). A credible threat of prosecution is sufficient 

to establish injury in fact; an actual prosecution or other 

enforcement action is not necessary. Driehaus, 573 U.S. at 

159. 

The justices insist that the threat of disciplinary action 

against File is entirely hypothetical. That’s a puzzling argument in the context of this regulatory scheme. An attorney 

who fails to pay bar dues is administratively suspended

from the practice of law, and every judge in the state receives a list of suspended lawyers. Practicing law while 

administratively suspended is an ethics violation subject to 

additional discipline. Under the court’s own rules, there is 

more than a credible threat of enforcement: the penalty for 

nonpayment of dues—administrative suspension of the right 

to practice law—is automatic and universally applicable.

It does not matter that the State Bar processes administrative suspensions or that the Office of Lawyer Regulation 

initiates misconduct proceedings against lawyers who

practice law while suspended. As we’ve explained, the 

Wisconsin Supreme Court is the ultimate regulatory authority for the practice of law in the state; it promulgates and 

enforces the rules governing attorney licensure, bar membership, and ethics. The respective roles of the State Bar and 

the Office of Lawyer Regulation flow directly from the court. 

The justices rely on Crosetto v. State Bar of Wisconsin, 

12 F.3d 1396 (7th Cir. 1993), but the relevant holding in that 

case is narrow and does not support their contention that 

File lacks standing to sue in federal court. Like this case, 

Crosetto was a challenge to Wisconsin’s mandatory bar; the 

plaintiffs named the State Bar, its executive director, and the 
No. 20-2387 7 

justices of the state supreme court as defendants. We affirmed the dismissal of the justices from the suit, explaining

that the plaintiffs’ attorney had conceded in oral argument

“that he was unaware of any Wisconsin lawyer ever being 

disciplined by the [j]ustices for that lawyer’s failure to pay 

dues to the integrated bar.” Id. at 1403. Based on that concession, we held that the claim against the justices was unripe. 

Id.

Our ripeness holding must be understood in the context 

of the arguments raised and addressed in the case. Importantly, the automatic administrative suspension was 

never discussed. Moreover, Crosetto was decided long before 

the elaboration of pre-enforcement standing principles in

Driehaus, Ezell, and Schirmer (among other cases). Our ruling

in Crosetto was therefore a limited one; it does not control 

here.

The justices also reprise their immunity defense, which

turns on a proper understanding of the nature of the claim 

raised in this suit. The justices enjoy immunity from suits 

challenging the exercise of their legislative power to draft 

and promulgate rules regulating the legal profession. Sup. 

Ct. of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 734 

(1980). In contrast, they are not immune when sued in their 

prosecutorial or enforcement capacity—provided that the suit

seeks prospective relief against the enforcement of the 

regulatory regime. Id. at 736–37; Reeder v. Madigan, 780 F.3d 

799, 805 (7th Cir. 2015).

In the district court, the parties debated which of these 

two roles best describes the capacity in which the justices

have been sued here. The district judge, however, chose a 

third option. He construed File’s suit as a claim against the 
8 No. 20-2387 

justices in their judicial capacity “as adjudicators of disciplinary matters.” File, 469 F. Supp. 3d at 888. Relying on

Pulliam, 466 U.S. at 541–42, he held that the justices are not 

immune. File, 469 F. Supp. 3d at 888.

The judge reached the right destination by the wrong 

route. This is a straightforward pre-enforcement suit seeking 

prospective relief enjoining the justices from enforcing the 

requirements of State Bar membership and payment of 

compulsory dues. In short, the justices have been sued in 

their enforcement capacity, not their legislative or judicial 

capacity. See Sup. Ct. of Va., 446 U.S. at 734 (listing the “issuance of, or failure to amend” legal-ethics rules as legislative 

activities and “hear[ing] appeals” as adjudicative activity).

The justices resist this conclusion, arguing that because 

the Office of Lawyer Regulation initiates and prosecutes 

disciplinary proceedings, their role with respect to the rules 

regarding bar membership is legislative only. As we’ve 

noted, however, the court has plenary constitutional authority to regulate the legal profession. In re Crandall, 754 N.W.2d 

501, 507 (Wis. 2008) (“[B]ecause the constitutional grants of 

authority obligate this court to ensure that courts function 

efficiently and effectively to provide for the due administration of justice, this court has the inherent and exclusive 

authority and power to regulate and discipline members of 

the bar in this state.”). The court created the Office of Legal 

Regulation, which acts as its agent in the investigation and 

initiation of misconduct complaints. The court supervises 

and controls the actions of the agency and remains the 

ultimate enforcement authority for the regulation of the bar.

WIS. S. CT. R. 21 pmbl.; id. R. 21.03 (providing that the director of the Office of Lawyer Regulation is appointed by and 
No. 20-2387 9 

serves at the pleasure of the state supreme court); id. R. 21.12, 

21.13 (providing that all components of the lawyer regulatory system act on behalf of the state supreme court). Because 

File seeks prospective relief enjoining the justices from 

enforcing the requirements of the mandatory bar, they are 

not immune. 

Before moving on, a few words about the judge’s reason

for rejecting the justices’ immunity claim. As we have noted, 

he reached the right result for the wrong reason. It was error

to rely on the Supreme Court’s decision in Pulliam, which

interpreted § 1983 to permit a claim for prospective relief 

against a judicial officer acting in his judicial capacity. 

466 U.S. at 541–42. Congress abrogated Pulliam’s holding in 

1996 by amending § 1983 to expressly bar such claims.

Federal Courts Improvement Act of 1996, Pub. L. No. 104-

317, § 309, 110 Stat. 3847, 3853. As amended, § 1983 provides 

that “in any action brought against a judicial officer for an 

act or omission taken in such officer’s judicial capacity, 

injunctive relief shall not be granted unless a declaratory 

decree was violated or declaratory relief was unavailable.” 

Though we have not had occasion to note the statutory 

abrogation of Pulliam, other circuits have done so. See, e.g.,

Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000); Justice 

Network Inc. v. Craighead County, 931 F.3d 753, 763 (8th Cir. 

2019); Moore v. Urquhart, 899 F.3d 1094, 1104–05 (9th Cir. 

2018); Allen v. DeBello, 861 F.3d 433, 439 (3d Cir. 2017). 

Summing up, File has standing to bring this preenforcement suit against the justices for an injunction blocking the enforcement of the rules requiring bar membership 

and payment of dues. And because the suit seeks prospec-
10 No. 20-2387 

tive relief against them in their enforcement capacity, they 

are not immune. 

With those threshold questions resolved, we come now 

to the merits. Our discussion can be brief. File’s claim is 

squarely foreclosed by the Supreme Court’s decision in 

Keller, which held that the compelled association required by 

an integrated bar is “justified by the State’s interest in regulating the legal profession and improving the quality of legal 

services.” 496 U.S. at 13. Keller further held that an integrated 

state bar “may ... constitutionally fund activities germane to 

those goals out of the mandatory dues of all members.” Id. at 

14. 

The Wisconsin Supreme Court follows Keller precisely. 

See WIS. S. CT. R. 10.03(5)(b)1 (providing that “[e]xpenditures 

that are not necessarily or reasonably related to the purposes 

of regulating the legal profession or improving the quality of 

legal services” may not be funded by compulsory dues). The 

court’s rules also provide for an optional annual dues deduction for activities that are not germane to the purpose 

identified in Keller and thus may not be funded by compulsory dues. Id. R. 10.03(5)(b)2.1

File responds that Keller has been fatally undermined by 

more recent Supreme Court cases, culminating with Janus. 

The tension between Janus and Keller is hard to miss. Keller 

rests largely on Abood v. Detroit Board of Education, 431 U.S. 

1 File has not raised a Keller “germaneness” challenge to any specific 

State Bar activity funded through compulsory dues. Nor has he challenged the adequacy of the dues-deduction procedures or raised a 

freestanding compelled-association claim distinct from his compelledspeech claim challenging the compulsory dues. 
No. 20-2387 11 

209, 235–36 (1977), which rejected a First Amendment challenge to a law requiring public employees to pay mandatory 

union dues. Analogizing the relationship between a union 

and its members to the relationship between a state bar 

association and its members, Keller applied Abood to uphold 

California’s mandatory bar. 496 U.S. at 12. The Court overruled Abood in Janus, holding that it “was poorly reasoned,” 

had “led to practical problems and abuse,” and was “inconsistent with other First Amendment cases and ha[d] been 

undermined by more recent decisions.” 138 S. Ct. at 2460.

With Abood overruled, the foundations of Keller have 

been shaken. But it’s not our role to decide whether it remains good law. Only the Supreme Court can answer that 

question. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (“[I]t 

is this Court’s prerogative alone to overrule one of its precedents.”). Though we long ago suggested that a lower court

might be free to declare that a Supreme Court precedent has 

been overruled by implication, see Levine v. Heffernan,

864 F.2d 457, 461 (7th Cir. 1988), we now know that’s incorrect. The Court’s instructions are clear: “If a precedent of this 

Court has direct application in a case, yet appears to rest on 

reasons rejected in some other line of decisions, the Court of 

Appeals should follow the case [that] directly controls, 

leaving to this Court the prerogative of overruling its own 

decisions.” Agostini v. Felton, 521 U.S. 203, 237 (1997) (quotation marks omitted). 

On this understanding, we have already declined an invitation to find that Janus implicitly overruled Keller, though 

we did so in an unpublished summary decision. Jarchow v. 

State Bar of Wis., No. 19-3444, 2019 WL 8953257, at *1 (7th 

Cir. Dec. 23, 2019). Other circuits have reached the same 
12 No. 20-2387 

conclusion in published opinions. Schell v. Chief Just. & Justs. 

of the Okla. Sup. Ct., 11 F.4th 1178, 1190–91 (10th Cir. 2021) 

(recognizing that Keller remains binding); Taylor v. Buchanan, 

4 F.4th 406, 409 (6th Cir. 2021) (same); McDonald v. Longley, 

4 F.4th 229, 243 n.14 (5th Cir. 2021) (same); Boudreaux v. La. 

State Bar Ass’n, 3 F.4th 748, 755 (5th Cir. 2021) (same); Crowe 

v. Or. State Bar, 989 F.3d 714, 725 (9th Cir. 2021) (per curiam) 

(same).

The Supreme Court denied certiorari in Jarchow, with two 

justices dissenting. Jarchow v. State Bar of Wis., 140 S. Ct. 1720, 

1721 (2020) (Thomas, J., joined by Gorsuch, J., dissenting 

from the denial of certiorari). The Court has turned away 

several additional opportunities to revisit Keller based on

Janus—including, most recently, in two cases just a few 

weeks ago. Firth v. McDonald, No. 21-974, 2022 WL 994348 

(U.S. Apr. 4, 2022) (mem.); Schell v. Darby, No. 21-779, 

2022 WL 994342 (U.S. Apr. 4, 2022) (mem.); see also Crowe v. 

Or. State Bar, 142 S. Ct. 79 (2021) (mem.). Keller therefore 

remains binding on us. File must seek relief from the 

Supreme Court.

AFFIRMED